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Carl Anthony Dimino v. the State of Wyoming

October 5, 2012

CARL ANTHONY DIMINO, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, Judge

The opinion of the court was delivered by: Kite, Chief Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.

[¶1] After conditionally pleading guilty to possession with intent to deliver marijuana, Carl Anthony Dimino challenges the district court's denial of his motion to suppress evidence discovered during a search of his vehicle. He maintains that he was unconstitutionally detained for a drug dog sniff after a traffic stop and that the subsequent search of his vehicle was illegal. We affirm, concluding the trooper had reasonable suspicion to detain him and the search was legal.

ISSUES

[¶2] Mr. Dimino states a single issue on appeal:

Did the trial court err in denying appellant's motion to suppress evidence obtained as a result of his illegal detention and the subsequent search of his rental vehicle?

The State articulates two issues, which we rephrase:

1. Did the trooper have a reasonable articulable suspicion of criminal activity to justify detaining Mr. Dimino momentarily so the trooper's drug dog could walk around the rental car for a free air sniff?

2. Did the trooper have probable cause to search Mr. Dimino's rental car, with or without the drug dog alert?

FACTS

[¶3] On February 17, 2011, Wyoming Highway Patrol Trooper Jason Green stopped Mr. Dimino on Interstate 80 in Carbon County, Wyoming for driving 79 to 80 miles per hour in a 75 miles per hour zone. The trooper approached the driver's side window to speak with Mr. Dimino and briefly smelled marijuana. Although he tried, he could not "regain" the scent, smelling only cigarette smoke and pine after that. Mr. Dimino provided the trooper with his driver's license and a rental car agreement. The rental agreement indicated that he had rented the car in San Francisco, California for approximately $1,300.

[¶4] The trooper asked Mr. Dimino to accompany him to his patrol car while he wrote out a warning. In response to the trooper's questions about his travel plans, Mr. Dimino stated that he was traveling to the east coast to pick up some items because he had recently relocated to San Francisco after a divorce. He explained that he had flown to San Francisco two weeks earlier and had been interviewing for a position at Bed, Bath & Beyond.

[¶5] Mr. Dimino stated that he had rented the car to drive to the east coast because his own car was "a piece of crap." When asked if it would not have been less expensive to fly back to the east coast rather than rent a car, Mr. Dimino said that renting a car was less expensive because he had waited until the last minute to make his travel plans. Throughout the stop, Mr. Dimino displayed signs of nervousness. Trooper Green observed that he was sweating and his eyes welled up with tears and he was often hesitant to answer the trooper's questions.

[ΒΆ6] Trooper Green completed the warning, and Mr. Dimino got out of the patrol car. As Mr. Dimino was returning to his car, the trooper asked if he would answer a few more questions but told him that it was not required. Mr. Dimino agreed to answer more questions, and the trooper asked if he was involved in criminal activities like transporting marijuana, which he denied. Mr. Dimino refused the trooper's request to search his vehicle, so the trooper told him that he was going to have his drug dog, Kato, perform an exterior sniff of the vehicle. The dog was very excited when he was released from the patrol car, but shortly calmed down and alerted to the ...


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